Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Peru (Ratification: 1994)

1. The Committee notes the Government’s report sent in reply to its observation of 2000, which dealt only with observations presented by a workers’ organization on 3 August 1999 under article 23 of the Constitution, and the Government’s report of 9 May 2000 responding to those observations. The Committee points out that its comments on the broader issues covered by the observation and direct request of 1998 are still valid and would be grateful if in its report due in 2003 the Government would reply to the 1998 comments made as well as to the ones in this observation.

2. The Committee noted previously that according to the Central Confederation of Workers of Peru (CUT), Supreme Decree No. 017-99-AG of 3 June 1999 expropriated 111,656 hectares of the ancestral lands of the indigenous community of Santo Domingo de Olmos in the province of Lambayeque and the land taken was adjudicated to private investors for a hydroelectric project. According to the CUT, neither the community nor its members were compensated for the confiscation of the lands. The Committee also noted that, in reply to the CUT’s communication, the Government indicated that the inclusion of the 111,656 hectares in the project did not amount to expropriation and that, in the event of the titling of that area, the Community’s rights would not be affected since section 5 of the abovementioned Decree safeguards third parties’ ownership rights.

3. The Committee notes that, in reply to a question it raised in its observation of 2000 on efforts to demarcate the community’s ancestral lands, the Government indicates that the Special Project for the Titling of Lands (PETT), created under the basic law of the Ministry of Agriculture (Legislative Decree No. 25.902) and regulated by Supreme Decree No. 064-2000, has responsibility nationwide for the physical and legal clarification of rural property belonging to individuals, which was expropriated and adjudicated for the purposes of agrarian reform, and of available uncultivated lands ("eriazas") suitable for crops/livestock belonging to the State for transfer to the private sector. According to the report, the rural property clarification process formalizes in law rural lands, peasant and indigenous communities and uncultivated lands by means of rural land registers established nationwide. It further indicates that the indigenous community of Santo Domingo de Olmos possesses all the technical elements it needs for registration and can start the procedure by registering the 360,808 hectares which are not in dispute, but that one legal element is missing, namely, a registration of its legal personality in the public record.

4. The Government’s report for 2001 repeats that the case is not one of expropriation and that the community’s property rights are safeguarded in the case it holds a title.

5. In examining these issues, the Committee has taken note of the laws and regulations governing agricultural land, namely, the Civil Code, Act No. 26.505 of 17 July 1995 on private investment in economic activities carried on in the national territory and the lands of peasant and indigenous communities, and its regulations, approved by Supreme Decree No. 011-97-AG of 12 June 1997. It notes that section 7 of the regulations provides that uncultivated lands ("eriazas") suitable for farming means lands which are not used owing to lack of water or excess water, and section 9 establishes that uncultivated lands ("eriazas") suitable for farming are in the domain of the State except for those for which a private or communal property title exists. The Committee further notes that the Ministry of Agriculture keeps an inventory of the uncultivated lands referred to in section 7 and monitors compliance with the contracts adjudicating such lands. Furthermore, the same Decree establishes (section 4) as uncultivated land 111,656 hectares to which the Olmos community asserts ancestral rights, and provides (section 5) for the said land to be registered to the Olmos Special Hydroenergy Irrigation Project. While noting the Government’s statement that the expropriation process has not continued, the Committee points out that lands to which an indigenous community is claiming ancestral rights have been incorporated in the domain of the State and adjudicated to private parties without any compensation being granted.

6. The Committee notes that the registration in the domain of the State and subsequent adjudication to the private sector of lands to which indigenous people claim ancestral rights, raises questions as to the conformity of this procedure with Articles 13 and 14 of the Convention. It will therefore examine the claim that the Olmos community has ancestral rights to the disputed lands in the light of those Articles of the Convention.

7. The Committee notes that Article 13, paragraph 1, of the Convention refers to lands which the peoples concerned occupy or otherwise use, while Article 14, paragraph 1, establishes that "the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized", and paragraph 2, of the same Article requires governments to take steps as necessary to identify those lands. The Committee already established, in a comment of 1998 on the application of the Indigenous and Tribal Populations Convention, 1957 (No. 107), that under the Convention traditional occupation conferred a right to the land, whether or not such a right was recognized. In examining whether there was traditional occupation of the lands in question, the Committee also noted that the peasant community of Olmos possesses four resolutions recognizing the lands: resolution of 9 May 1544 by Blasco Núñez de Vela, Viceroy of Peru; resolution of 22 April 1550 by Pedro de la Gasca, President of the "Audiencia de los Reyes" (Kings’ Court); resolution of 13 April 1578, by Francisco Toledo, Viceroy of Peru; and supreme resolution No. 086 of 4 August 1931 by the Ministry of Development recognizing the peasant communities of Olmos as indigenous peoples. The first three resolutions recognize the rights over the land and were registered by a notary public in 1847, 1948 and 1974. The Committee will not go into their validity in law as titles of property, but takes note of them in so far as they show the existence of traditional occupation and the will of the Olmos community not to forego their rights over the disputed lands, having striven for centuries to obtain recognition of them. The Committee also noted the complaint submitted by the President of the peasant community of Olmos on 24 July 1999 which was sent by the CUT.

8. The Committee notes that the information at its disposal shows that there was traditional occupation, although it is not possible to determine whether it covered all the lands in question. The Committee observes that, according to the map provided by the CUT, the disputed area appears to be located in the centre of the lands traditionally occupied by the Olmos community. It notes with concern that, according to the CUT, the 111,656 hectares are strategic for the communities and that much of the remaining area is constituted by hills and is subject to water problems. The Committee recalls that in 1999, the year in which the above Decree was issued, the Convention was already in force, and that in paragraphs 14 and 15 of its observation of 1998, it already expressed concern that Act No. 26,505 might facilitate the dispersion of communal lands.

9. The Committee accordingly points out that what the Government refers to as "incorporation in the domain of the State" constitutes, in so far as there was traditional occupation, a denial of the rights of ownership and possession established in Articles 13 to 15 of the Convention, regardless of the procedure used. The Committee notes that the Olmos indigenous community is claiming the return of its lands, if not now at some time in the future. The Committee asks the Government to take the necessary steps, in accordance with Article 14, paragraph 2, of the Convention, to identify as Article 6 prescribes, the lands which they traditionally occupy, in consultation with the peoples concerned. The Committee hopes that, having done so, the Government will then take the appropriate steps to ensure, in accordance with Article 14, paragraph 2, of the Convention, the effective protection of their rights of ownership and possession, including to the 111,656 hectares in question, as appropriate.

10. More generally, the Committee is concerned that Act No. 26,505, its implementing regulations and the related legislation may impair the rights of indigenous peoples to the lands they traditionally occupy. It requests the Government to take appropriate steps to prevent lands traditionally occupied by indigenous peoples from being registered in the domain of the State, and to facilitate the prompt titling of such lands. The Committee hopes that in its next report the Government will send information on the measures adopted and on progress made.

The Committee is also sending a request directly to the Government.